' RUSTAM ALI MALIK, J. Through this judgment we intend to dispose of Criminal Appeal No,584 of 2000 and also Murder Reference No,283 of 2000, both arising out of the judgment, dated 18-4-2000 passed by the learned Additional Sessions Judge, Gujrat, whereby he had convicted Muhammad Siddique accused/appellant under section 302(b), P.P.C. And had sentenced him to death. The accused/appellant was also directed to pay an amount of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default in payment of compensation to undergo simple imprisonment for six months.
2. The case against the accused is based on F.I.R. No,301/98 registered in Police station Kakrali, District Gujrat. The F.I.R. Was registered on the basis of the statement Exh. P.H of Mian Khan, P.W.9 wherein he had stated that he was engaged in agriculture and his land was situated towards the north of his village. He had installed a tube-well in his land and was also keeping his cattle at the said tube-well. About 20/22 days prior to the occurrence Muhammad Siddique, who is a gypsy, was known to him. He brought his cattle to his tube-well and' he allowed him to bring his cattle on his tube-well in the evenings, after grazing them in the Baila. Ishtiaq Anwar who was the nephew of the complainant and used to work with the complainant at tube-well, developed friendly relations with Muhammad Siddique aforesaid. About 10/20 days ago Ishtiaq Anwar lent an amount of Rs,5,000 to Muhammad Siddique aforesaid and who promised to return the same after three or four days. But Muhammad Siddique did not return the said amount. On the day of occurrence, Ishtiaq Anwar demanded the said amount from Muhammad Siddique and which resulted in a quarrel between them. Ishtiaq Anwar slapped Muhammad Siddique aforesaid. They were separated by the complainant and Muhammad Akram P.Ws.
3. On the day of occurrence, around 5-00 p.m, the complainant as well as Muhammad Akram, Khalid Hussain, Sub. (Retd.) Muhammad Siddique and Ishtiaq Anwar were present at their tube- well. Ishtiaq Anwar was sitting on a cot near the cattle shed and they were preparing fodder for the cattle. Muhammad Siddique, who was also present there, abused Ishtiaq Anwar and asked him as to why he had slapped him in the morning and thereafter Muhammad Siddique gave a hatchet blow on the head of Ishtiaq Anwar and who fell down and expired. The eye-witnesses tried to catch hold of Muha rmad Siddique but he tied away from the spot.
4. After the investigation, the challan was submitted against the accused and later the case was sent up to the Court of Session for trial. The accused was formally charged by the learned trial Court on 18-9-1999 for committing Qatl-i-amd s,f lshtiaq Anwar deceased. The accused pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. In this case the prosecution has examined as many as 10 P.Ws. Of them, P.W.10 is Riaz Ali an ex- Sub-Inspector who in November, 1998 was posted in Police Station. Kakrali and on 16-11-1998 he had recorded the statement of the complainant in the form of F.I.R. Exh. P.H. Thereafter, he had proceeded to the place of occurrence in village Murarian. He prepared the injury statement and also the inquest report. He handed over the dead body of the deceased to a Constable for escorting the same to T.H.Q Hospital, Kharian for the purpose of post-mortem examination. He prepared the rough site plan of the place of occurrence and also collected blood-stained earth from the spot. He recorded the statements of P.Ws under section 161, Cr.P.C and also took into possession the last-worn clothes of the deceased, which were produced before him by the Constable after the post-mortem examination of the deceased. He also got prepared the site plans Exh.P.E and Exh. P.E/1 from Patwari. He arrested the accused on 5-12-1998 after the application for pre-arrest bail of the accused was dismissed. He obtained physical remand of the accused and during the course of interrogation the accused who was in Police custody got recovered the weapon of offence i.e, hatchet P.4 from the Baila, in the area of village Murarian and he took the same into possession vide memo. Exh. P.G. On the completion of investigation, he got the accused challaned in this case.
6. P.W.2 is Dr. Farooq Ahmad Bangash, Medical Officer who on 17-11-1998 had conducted the post- mortem examination on the dead body of Ishtiaq Anwar deceased and had found the following injury on his person:-- "1. A deep incised wound 20 c.m x 2 c.m. x brain matter is coming out of the wound over the right parietal region involving the frontal and occipital region, all bones underneath were fractured."
' According to him, injury No,1 was grievous and fatal, caused by a sharp edged weapon and was ante-mortem in nature and the death in this case had occurred due to shock and cerebral haemorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. He described the time between injury and death as instantaneous and the time between death and post-mortem examination as about 16 hours. The copy of post-mortem report is Exh. P.A while the diagram of injuries is Exh.P.A./1.
7. During the cross-examination, P.W.2 admitted that the certified copy of Medico-legal Report Exh.
D.A had been issued by him and according to which, on 1-12-1998, around 11-30 a.m, he also medically examined Muhammad Siddique accused and had found the following injuries on his person:- "(1) Healed bruised area 5 c.m. x 3 c.m over the left cheek.
(2) Healed wound with a scab formation 2 c.m x 1 c.m back of left elbow.
(3) Multiple healed bruise marks over the back of left fore-arm.
(4) Healed bruise area 4 c.m x 2.5 c.m. Back of right elbow.
(5) Tender swelling 15 c.m x 12 c.m over the knee joint with infected wound 4.5 c.m x 3 c.m in the middle of swelling over the petallar region. Pus discharge was coming from the wound.
(6) Healed scab formation wound 3 c.m x 2 c.m, medial side of right joint."
' According to him, injury No,1 was Shajjah-I-Khafifah while all the remaining injuries were declared as Jurh Ghayr Jaifah Damiyah and that all the injuries were caused by blunt weapons. Duration of injuries was described by him as more than two weeks. He stated that the Medico-legal Report Exh.D.A and the diagram of injuries Exh. D.A/1 are also correct (as per record).
8. In this case the eye-witness account is furnished by P.W.8 Sub. (Retd.) Muhammad Siddique son of Badar-ur-Din and P.W.9 Mian Khan complainant and both of whom deposed on the same lines as indicated in the FIR. P.W.9 Mian Khan also deposed about the motive incident.
9. On 28-3-2000, the learned Prosecutor tendered in evidence reports of Chemical Examiner Exh.P.L and Exh.P.M. Regarding the blood-stained earth and blood-stained axe respectively. On 31-3-2000, he also produced reports of Serologist as Exh. P.L/1 and Exh.P.M/1 and closed the case for the prosecution.
10. On the conclusion of the prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C and wherein he denied all the incriminating circumstances. In answer to the question as to why this case against him and why the P.Ws had deposed against him, the accused replied as under:-- ' "Complainant Mian Khan, P.W.9 was already known to me and I used to bring my cattle at the Dera of complainant Mian Khan for providing manure. Accordingly I had brought my cattle about 25 in number and was keeping those in the `Behak' at the Dera/fields of complainant Mian Khan. One Mst. Ghazala alias Azfa daughter of brother of wife of complainant P.W was working as maid servant in the house of complainant Mian Khan. She fell in love with me and took away me with her to perform Nikah. I and said Mst. Ghazala were on way to Jaura Karnana, Police Station Lala Musa, District Guijrat in a Wagon when complainant Mian Khan along with Yousaf son of Faryad, Shaukat and Bashir, Iqbal, Irfan and others caught us near Jaura Karnana and they forcibly took me and said Mst. Ghazala back to the Dera of the complainant in village Murarian. At the Dera of complainant, complainant and his helpers confined me and started beating me. On 16-11-1998, at evening time they planned to murder me and accordingly took me near sugarcane crop and started beating me. Ishtiaq Anwar (now deceased) was also among the persons who were giving me beating. During beating, complainant Mian Khan gave a hatchet blow at me to murder me but accidentally that hatchet blow landed on the head of Ishtiaq Anwar who died due to that hatchet blow. During that process to save my life I hid myself and then fled away. Complainant Mian Khan P.W.9 is an influential person of the area who in collusion with Police concocted a false story and involved me falsely in this case. I was medically examined by a Medical Officer with the help of a Magistrate. I tried to lodge my F.I.R. With Police showing true facts. My F.I.R. Was not registered as Police was in collusion with the complainant. Then I filed writ petition before Honourable Lahore High Court, Lahore. I submit certified copy of the writ petition as Exh. D.E and certified copy of order, dated 27-11-1998 in the writ petition as Exh.D.E/1. I stated my defence version before Investigating Officer, P.W.10, Riaz Ali, same as mentioned in Exh. P.E. Upon my version and under the direction of Honourable Lahore High Court, Lahore, F.I.R. No,3 was registered by Police on 2-1-1999 but the facts as mentioned in F.I.R. No, 3 were distorted. My version was not investigated by the Police as I was in Jail. I have been falsely implicated in this case."
' He opted to make statement on oath under section 340(2) Cr.P.0 and also stated that he will produce evidence in defence. Later the accused appeared in the witness-box as D.W.1 and made statement on oath. He deposed that the allegation levelled against him that he had obtained any loan from Ishtiaq Anwar deceased was false and that the Investigating Officer in collusion with the complainant had distorted the facts of the case and had involved him falsely in the murder case.
11. The learned counsel for the appellant has argued that the prosecution had failed to produce independent eyewitnesses regarding the occurrence; that the statements of P.W.8 and P.W.,9 do not inspire confidence; that the statements of Mian Khan complainant regarding the motive is not corroborated by any other evidence as P.W.8 did not make a clear statement in that respect and simply deposed that there was a dispute between Ishtiaq Anwar, deceased and Muhammad Siddique accused over a money matter and due to the same cause on the same day there was a quarrel between Muhammad Siddique accused and Ishtiaq Anwar deceased and the same was the cause of occurrence; that hatchet P.4 had been planted on the accused; that the recovery aforesaid was actually fake; that the medical evidence does not fully corroborate the ocular account; that there is nothing in the prosecution evidence to indicate that Mian Khan who had allegedly caused the fatal injury to the deceased had done so after premeditation; that, on the other hand, the accused in his defence version had claimed that Mst. Ghazala alias Azra who was daughter of brother of the wife of the complainant and was working as a maid servant in the house of the complainant had fallen in love with him and she had taken him along to perform Nikah with him and while he and Mst. Ghazala were on way to Jaura Karnana in the area of Police Station Lala Musa in a Wagon, Mian Khan complainant along with others caught hold of them and forcibly took them to the Dera of the complainant in village Murarian where the accused was confined and was subjected to beating and on 16-11-1998 they attempted to kill him but accidentally the hatchet blow which Mian Khan complainant had attempted to give to him had landed on the head of Ishtiaq Anwar, deceased and who died as a result of the said blow and the accused, for fear of his life, had fled away and had hidden himself; that the defence version of the accused is more probable than the prosecution version and the prosecution had failed miserably to prove its case against the accused beyond reasonable doubt and hence the accused/appellant be acquitted.
12. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record in the form of statements of P.W.8 and P.W.9 who are eye-witnesses of the occurrence, coupled with the medical evidence furnished by the Medical Officer i.e, P.W. 2 and also corroborated by the evidence regarding the recovery of the weapon of offence i.e, hatchet and that it is a case of single accused and there being no possibility of mistaken identity as the occurrence had taken place in day light, the learned trial Court had rightly convicted the appellant for the offence Under section 302(b), P.P.C and had rightly awarded him the normal sentence provided by law for the said offence. He has requested that the appeal filed by the accused/appellant be dismissed and the sentence of death awarded to the accused by the learned trial Court be confirmed.
13. We have carefully considered the arguments advanced from both sides.
14. It is a case of promptly lodged F.I.R. The occurrence had taken place around 5.00 p.m while the F.I.R. Was lodged on the same day at 6.15 p.m whereas the Police Station was located at a distance of 9 k.m. It is a case of single accused and there is no assertion of mistaken identity. The complainant i.e, P.W.9 Mian Khan and P.W.8 Muhammad Siddique who are the eye-witnesses of the occurrence did not have previous enmity with the accused/appellant. The version of the accused that as he was having "relations" with Mst. Ghazala, the daughter of the brother of the wife of the complainant and who was working as a maid servant in the house of the complainant and who had eloped with him and as the complainant along with his companions had caught hold of them while whey were travelling in a wagon and had attempted to kill him by giving him a hatchet blow and which hit the deceased instead, does not appeal to reason. So far as the injuries on the person of the accused are concerned, possibility cannot be ruled out that he might have been subjected to beating by the P.Ws after the occurrence. The weapon of offence which was got recovered by the accused was sent to the Chemical Examiner and the report of Chemical Examiner Exh. P.M is positive. The ocular account in this case is fully corroborated by the medical evidence furnished by P.W.2. Dr. Farooq Ahmad Bangash and according to him the injury on the person of the deceased had been caused with a sharp-edged weapon and the death had occurred due to shock and cerebral haemorrhage, as a result of injury No,1, which was sufficient to cause death in ordinary course of nature. The motive as set up by the prosecution in this case is fully proved by the statements of P.W.8 and P.W.9. But even if it be presumed that the existence of motive in this case was not fully proved, even then it will not make any difference as an occurrence of this nature can take place even without the existence of motive. Keeping in view the overwhelming and convincing prosecution evidence on record and which is sufficient to prove the charge under section 302 (b), P.P.0 against the accused, the learned trial Court had rightly convicted him under section 302 (b), P.P.C. However, so far as the quantum of sentence is concerned, we feel that as the accused/appellant had not repeated the blow and as the occurrence appears to have taken place all of a sudden, this provides a sufficient mitigation for awarding lesser sentence to the accused, instead of awarding him the capital punishment.
15. In view of what has been stated above, we maintain the conviction of the accused under section 302 (b), P.P.C. However, in view of the circumstances mentioned above, we convert the sentence of death into life imprisonment. The accused will also pay an amount of Rs,50,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in case of default in payment of compensation, he will undergo simple imprisonment for six months. The accused will also be given the benefit under section 382-B, Cr.P.C.
16. With the above modification in the impugned judgment, we dismiss the appeal filed by the accused/appellants. The sentence of death awarded to the accused/appellant by the learned trial Court is not confirmed.
17. Murder Reference (No,283/2000) is answered in the negative.